Cultic Studies Review, Vol. 3, Nos. 2 &3, 2004, Page 26
Cults and Religious Privileges in England and Australia:
Can the Wheat be Separated from the Chaff?1
Stephen Bruce Mutch, M.A., LLB.
Solicitor, New South Wales, Australia
Abstract
This paper explores whether it is feasible in Australia to establish an
adjudicative tribunal whereby harmful or deviant religious groups might be
disqualified from receiving fiscal privileges provided to religions generally. The
difficult question of the legal definition of religion, which generally includes
groups pejoratively characterised as cults, is examined. Alternative
approaches of entity disqualification by definition or an inclusive definition
with subsequent policy disqualifications are discussed. It is concluded that
religion is a term best utilized, if at all, as a tool of broad prima facie
classification only, to which transparent public policy parameters might then
be applied in different legislative contexts. Charity law is presented as an
example of a legal context in which public policy criteria are applied to
questions of entitlement. The gate keeping functions of the Charity
Commission for England and Wales are presented as a model for a
prospective adjudicative tribunal in the Australian Commonwealth.
Community protections found in the UK Charities Act 1993 and Article 9 (2) of
the European Convention on Human Rights and Fundamental Freedoms 1950
are noted with approval. The potential impediment of s. 116 of the Australian
Constitution Act 1900, which entrenches notions of free exercise and non-
establishment, is also examined. It is concluded that interpretations of s. 116
requiring a non-discriminatory/neutral aid approach, or a strict separation of
church and state, will be unlikely to prevail. Therefore it would be feasible,
although not without some risk of judicial intervention, for the Commonwealth
to establish a definitions tribunal dealing inter alia with religious applicants for
Commonwealth fiscal dispensations. However, the existence of s. 116 would
make it unlikely for State governments, which are unaffected by the section,
to submit cooperatively to a Commonwealth definitions entitlement tribunal
dealing with third sector entities which include by definition religious groups
The defining word religion and associated terms such as denomination or worship are
commonly used in public policy contexts in the United Kingdom and Australia. The word
religion appears in the Australian constitution, where it invokes free exercise and non-
establishment provisions,1 and it is found often in ordinary statutes. Religious freedom is
also a concept acknowledged and supported generally by the courts.2 The word religion may
relate to individuals or groups and may be used to attract legal protections or confer
privileges, fiscal and otherwise. Public policy contexts involving religion include, inter alia,
rating exemptions for places of worship, marriage celebration, exemptions from military
conscription, denominational schools accreditation, employment and anti-discrimination law
exemptions, deductible donations, religious charitable trusts, exemptions from fundraising
legislation, taxation exemptions and official prayers.
While the concept of religious freedom may be invoked to protect individuals or possibly
groups against actions which might infringe upon that freedom, this paper is focused on
fiscal privileges provided to religious groups or institutions defined by law. For example,
under the law of charity, which developed by precedent under the common law,

Cultic Studies Review, Vol. 3, Nos. 2 &3, 2004, Page 27
advancement of religion is a charitable purpose, provided this advancement is non-profit
and for the public benefit,3 which includes being non-political.4
Consequently, non-profit, non-political groups which advance religion for the public benefit
qualify for privileges afforded by governments in the UK and Australia to charitable
organisations, including tax-exempt status. In addition, religious groups which may not
qualify as religious charities may nevertheless benefit from concessions granted to religious
institutions as a separate category.5 Therefore, in the UK, places of worship are exempt
from local rates even if the religious institution involved is not a religious charity. In
Australia, religious institutions are granted tax exempt status along with religious charities,
although the range of benefits extended to religious institutions is less extensive than those
provided to religious charities.6
The Elusive Definition of Religion
Despite the importance of fiscal privileges afforded to religious groups, the definition of the
term religion itself is elusive some say impossible to define with any certainty.7 It may,
depending on the prevailing view, include moral or beneficial, immoral or harmful and
amoral groups. Furthermore, the definition might well include equivalent belief systems
and/or non-belief. There is no universally accepted judicial or statutory definition of religion.
The Western tendency is to incorporate a concept of supernatural into the definition. It
seems to be accepted as a rule of thumb among legal academic commentators that the UK
legal definition involves a deity or deities and worship (with the anomalous inclusion of
certain strands of Buddhism). The Australian definition generally applied involves
supernatural belief along with canons of conduct giving effect to that belief,8 ‗though canons
of conduct which offend against the ordinary laws are outside the area of immunity,
privilege or right conferred on grounds of religion‘.9 In the US, equivalent belief systems
playing the same role as religious beliefs have been granted legal religious status.
However, in India, religion has been defined as encompassing systems of belief conducive to
spiritual well being.10
Legal definitions thus encompass both substantive and functional definitions advanced by
sociologists.11 The landmark Indian case also lends support to the proposition that a
religion must ‗lay down a code of ethical rules for its followers to accept‘.12 It is arguable
that the second limb of the Australian test likewise requires ethical canons of conduct,
although it is likely that the generally accepted Australian position, at least at the
Commonwealth level, posits an ethically neutral definition of the word religion per se.
Although some scholars seek to differentiate between groups pejoratively characterised as
cults and those designated religion,13 there is no statutory or common law definition of the
word cult in the United Kingdom or Australia. Hence, because most groups described as
cults would also seem to fit the extant versions of the legal definition of religion,14 they
would, on the face of it, be entitled to those protections and privileges afforded to religions
generally.15
Public Policy Flexibility Under the Law of Charity
However, at least in the field of charity law, the requirements that an entity qualifying prima
facie as a religion must also advance (or promote) religion and must do so in the public
interest, means that some religious groups may not be entitled to receive fiscal benefits
provided to religious charities. In addition, also in the field of charity law, some religious
groups may fall foul of judicially determined public policy disqualifications, based on
overlapping notions of public morality and harmful conduct.
The process for admitting entities to charitable status does allow some judicial discretion (or
quasi-judicial in the case of the Charity Commissioners for England and Wales), to separate